A Checklist for Employers Before Discharging Employees

When an employer doesn't know how to fire an employee, the risk is employment litigation that is costly, time-consuming and distracting to the entire organization. Employers can reduce their risk of wrongful discharge liability by asking a few questions in advance of firing an employee. An employment termination checklist lets an employer know when to fire someone by identifying all the legal risks and issues in advance. Whatever the reason for employee discharge--poor work performance, employee misconduct, or job elimination--the employer can take any additional steps needed to limit legal exposure before it's too late.

Assessing Potential Legal Exposure in Any Discharge Decision

With respect to any discharge decision, ask the following questions:

1. Is the employee a member of a protected class?

2. Has the employee been off work as a result of the birth or adoption of a child, the employee's own serious health condition, or the serious health condition of a spouse, child or parent?

3. Has the employee indicated, or is there credible, objective evidence, that the employee is unable to perform all or some of the job duties due to an injury, illness, or disability?

4. Has the employee filed for or received worker's compensation benefits?

5. Has the employee reported any illegal or unethical activity or a violation of company policy or rules?

6. Has the employee filed a complaint with an external agency or a lawsuit regarding any work-related matters or participated in an external complaint investigation or other proceeding?

7. Is the employee eligible to receive a commission or bonus if he/she continues employment?

8. Is the employee retirement eligible or close to meeting the criteria for retirement eligibility?

9. Has the employee engaged in union activity (such as organizing or picketing) or other protected concerted activity?

10. Has the employee been complaining to the employer or others about safety concerns or other matters that would affect the public interest (whistle blowing)?

11. Were any promises (either written or verbal) made to the employee regarding continued employment, employment for a particular duration, or the reasons for which the employee may be discharged?

12. Is the stated reason for the discharge contradicted by any documentation pertaining to the employee's performance or work history (such as performance reviews, salary increases, bonus awards) or other documentation?

If the answer to any of the above questions is YES, the employee may be able to state a claim for discrimination or wrongful discharge. Consult with legal counsel to determine the risk of discharge under such circumstances.

Source

Considerations in Performance-Related Discharges

Before discharging an employee for poor work performance, consider the following questions:

1. Is the expected job performance consistent with the job classification?

2. Have the expectations been communicated to the employee?

3. Has the employee been provided the necessary training and other resources to perform at the expected level?

4. Has the employee's performance actually failed to meet the expected standard?

5. Has the employee been provided notice of the performance deficiency and given a reasonable opportunity to improve?

6. Has the employee been advised of the consequences of a failure to improve performance to the expected level?

7. Is there documentation of the performance issues and efforts to resolve the issues?

8. Have all employees with similar performance deficiencies been treated similarly?

The answer to each of the above questions should be YES before proceeding to discharge.

Considerations in Conduct-Related Discharges

Before discharging an employee for misconduct or work rule violations, consider the following questions:

1. Is there a written work rule or policy?

2. Is the rule reasonably related to the safe and efficient operations of the employer?

3. Was the employee aware or reasonably should have been aware of the work rule or policy?

4. Was the employee given adequate warning of the consequences of a rule violation? (This may be shown by the employee’s knowledge of the rule, communication of rule by the employer, consistent enforcement of rule, and training.)

5. Was a fair and objective investigation conducted and the employee provided an opportunity to tell his/her side of the story?

6. Is there substantial evidence or proof of guilt based on the facts discovered during investigation, considering the employee's motives and the purpose sought to be achieved by the rule?

7. Is discharge a reasonable penalty, considering the seriousness of the offense and the employee’s past record, length of service, and intent?

8. Is discharge consistent with treatment of other employees under similar circumstances?

The answer to each of the above questions should be YES before proceeding to discharge.

Considerations in Discharges Due to Job Elimination

Before discharging an employee due to job elimination, consider the following questions:

1. Is there an objective reason for the job elimination (such as decline in business, technological change, geographic relocation, etc.)?

2. Is there documentation of objective selection criteria for picking the employees whose positions are being eliminated (such as seniority, past documented performance, etc.)?

The answer to the above questions should be YES before proceeding with the job elimination.

3. Is there evidence to suggest that the job elimination is a subterfuge to discharge the employee for another reason?

4. Is there an intent to back-fill the employee's position?

5. Does an analysis of the employees selected for job elimination indicate a statistically significant adverse impact on the basis of age, race, or sex? (Note that adverse impact analysis should be conducted under guidance of legal counsel so that it may be protected under the attorney-client privilege.)

If the answer to question 3, 4 or 5 is YES, discuss with legal counsel the risk of proceeding with a job elimination under such circumstances.

6. Is the employee covered under a collective bargaining agreement that contains specific provisions relating to reduction in forces (such as required notice, manner of selection for a reduction in forces, eligibility for severance benefits, etc.)?

7. Is the job elimination part of a Plant Closing (the permanent or temporary shutdown of a single site of employment resulting in loss of employment for 50 or more employees) or Mass Layoff (an employment loss at a single employment site of at least 33% of the employees and at least 50 employees) such that notices under the Worker Adjustment and Retraining Notification (WARN) Act will be triggered?

8. Will the employee be asked to sign a release of employment-related claims in connection with an exit incentive or other employment termination (severance) program offered to more than one employee such that the requirements of the Older Worker Benefit Protection Act (OWBPA) will be triggered?

If the answer to question 6, 7 or 8 is YES, review with legal counsel to ensure all legal and contractually bargained for requirements are met.

Conclusion

By proactively identifying and addressing legal risks before making the final discharge decision, employers can reduce their chances of wrongful termination litigation and strengthen their defenses in the event a lawsuit is filed.

*Disclaimer: This Hub is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

Comments

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Deborah Neyens 5 years agofrom Iowa

Thanks for reading and commenting, love. I hope it helps employers make the right decisions.

Lovelovemeloveme 5 years agofrom Cindee's Land

This was a really detailed informative HUb. i think with recession and a lot of employers trying to cut back on costs by cutting back on employees, a lot of people will find this hub resourceful. thanks

Author

Deborah Neyens 5 years agofrom Iowa

So glad to hear I was able to help. Thanks for the comment, Saida.

Saida Jones 5 years ago

I recently dealt with a situation at my place of employment and I found this hub to be very useful.

Author

Deborah Neyens 5 years agofrom Iowa

I'm sorry to hear about your experience, Mary. That's wrong and illegal. Thanks for the comment, vote and share.

Mary Hyatt 5 years agofrom Florida

All employers should read this. In my experience, I have seen employees "let go" for really stupid reasons. I was forced into early retirement because I was costing my employer too much to keep me because of the cost of my benefits. Just not right.

I voted this UP, and I will share.

Author

Deborah Neyens 5 years agofrom Iowa

Haha. And I learned how to reply promptly to comments! Thanks for stopping by again, J. S. Matthew. : )

JS Matthew 5 years agofrom Massachusetts, USA

You've come a long way since then DeborahNeyens! HubNugget, Hub of the Day...Keep up the great work!

JSMatthew~

Author

Deborah Neyens 5 years agofrom Iowa

Christy, you are so right. So often an employer fires someone as a knee-jerk reaction to something without thinking it through properly first. Thanks for the comment.

Christy Birmingham 5 years agofrom British Columbia, Canada

Hey Deb, this hub will be useful for employers to ask themselves before dismissing employees. It really can't be a spur of the moment decision, and you outline questions to ask very well.

Author

Deborah Neyens 5 years agofrom Iowa

Thanks, John, I'm glad you enjoyed it!

John Sarkis 5 years agofrom Los Angeles, CA

Hi Deborah, and what an interesting article this one is.

You make some really good points in your article.

John

Author

Deborah Neyens 5 years agofrom Iowa

Curiad, so sorry to hear about your experience. Your former employer probably wasn't talking to their lawyer when they did that! Thanks for your comment.

Author

Deborah Neyens 5 years agofrom Iowa

Thanks, Daisy. Yes, I definitely was in attorney mode when I wrote this. I haven't done a legal hub in a while. I'm thinking I should. I'm speaking to a college class tonight about employment law issues.

Mark G Weller 5 years agofrom Lake Charles, LA.

Interesting Deb, I was fired while on temporary disability but the company had far more resources that I did to fight it.

Daisy Mariposa 5 years agofrom Orange County (Southern California)

Deb,

I can see you were wearing your *attorney hat* when you wote this Hub. Thanks for providing us with this very helpful information.

Author

Deborah Neyens 5 years agofrom Iowa

Thanks for reading and commenting, midget. If all employers used this sort of checklist, it would spare a lot of the aggravation and frustration of employment litigation.

Michelle Liew 5 years agofrom Singapore

This should be put up in every employer's workstation to protect them against employees who want to take advantage of situations. Very useful and interesting advice. Thanks for sharing!

Author

Deborah Neyens 5 years agofrom Iowa

Thanks, Linda! I hope it helps both employers and employees.

Author

Deborah Neyens 5 years agofrom Iowa

Sherri and Julie, thanks so much for reading and commenting. There are so many minefields out there for employers these days that it really helps to sit back and assess things objectively before taking adverse employment action. That objective review ultimately helps protect the employee's rights, too.

And, J.S. Matthew, thanks for being the first person to comment on this hub all those months ago. I'm sorry I didn't reply until now. That was my first day on Hubpages!

Linda Bilyeu 5 years agofrom Orlando, FL

Hi Deb,

The information you supplied will hopefully help someone out along their journey. Thank you for creating this hub. Up! Useful! Interesting!

Sherri 5 years agofrom Southeastern Pennsylvania

You presented valuable information not only for anyone who has hiring / firing responsibility but also for any employee. These considerations certainly protect the employer's interest, but they also point to potential employee rights violations. Voted up and useful.

Jools99 5 years agofrom North-East UK

Useful advice for managers - I could have used this recently! However, I have left the job so no more aggro :o)

JS Matthew 6 years agofrom Massachusetts, USA

This is well-researched and very informative! Welcome to HubPages and keep up the great work!